Kerala High Court

T.P.Alias vs The Managing Director Of Kerala ... on 14 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                      WP(C).No.29176 OF 2020(V)

PETITIONER:-

                T.P.ALIAS
                AGED 55 YEARS
                S/O. POULOSE, RESIDING AT THAZHATHUVEETTIL HOUSE,
                POICKATTUSSERY, CHENGAMANAD P.O. ERNAKULAM
                DISTRICT, 683 578, PRESENTLY WORKING AS METER
                READER IN SECTION -1., OF SUB DIVISION OFFICE
                PALLIMUKKU OF PUBLIC HEALTH DIVISION, KOCHI.

                BY ADVS.
                SRI.K.N.CHANDRABABU
                SMT.K.RAJESWARY
                SHRI.ANIL PRABHA.K

RESPONDENTS:-

      1         THE MANAGING DIRECTOR OF KERALA WATER AUTHORITY
                OFFICE OF THE MANAGING DIRECTOR OF KERALA WATER
                AUTHORITY,
                THIRUVANANTHAPURAM 695 821.

      2         STATE OF KERALA,
                REPRESENTED Y THE PRINCIPAL SECRETARY, DEPARTMENT
                OF IRRIGATION, GOVERNMENT SECRETARIAT
                THIRUVANANTHAPURAM 695 001.

      3         THE ASSISTANT EXECUTIVE ENGINEER,
                OFFICE OF THE ASST. EXECUTIVE ENGINEER, WATER WORKS
                SUB DIVISION, PALLIMUKKU, KOCHI 682 016.

      4         THE EXECUTIVE ENGINEER,
                P.H. DIVISION, KERALA WATER AUTHORITY, KOCHI 16.

      5         THE CHAIRMAN OF KERALA WATER AUTHORITY,
                JALABHAVAN, VELLAYMABLAM,
                THIRUVANANTHAPURAM 695 821.
                R1 BY ADV. SMT.MARY BENJEMIN

OTHER PRESENT-
             GP BIJOY CHANDRAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-
01-2021, THE COURT ON 14-01-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.29176/2020
                                        2


                                 JUDGMENT

Dated this the 14th day of January 2021

1. The writ petition is filed with the following prayers:-

"i. a Writ of Certiorari or such other writ, direction or order quashing Exhibit-P1 to the extent to which it is prejudicial to the interest of the petitioner.

ii. a Writ of Certiorari or such other writ, direction or order quashing Exhibit-P9 and P10, as illegal. iii. A writ of mandamus or such other writ, direction or order directing the 5th respondent to consider and pass orders in Exhibit-P8 appeal in accordance with law. "

2. Heard learned counsel for the petitioner and learned standing

counsel appearing for the respondents.

3. It is submitted that the petitioner has been working in the

Office of the Public Health Division at Pallimukku, Ernakulam,

as Meter Reader. The petitioner is due to retire on

superannuation in the month of March, 2021. While so,

Exhibit-P1 order of transfer has been issued by the 1 st

respondent. It is submitted that three more vacancies exist

even before issuance of Exhibit-P1 as evident from Exhibit-P2. W.P.(C).No.29176/2020

Exhibit-P3 is a representation submitted by the petitioner

against the order of transfer and that the same is not

considered by the 1st respondent. Therefore, the petitioner

preferred W.P.(C).No.21640/2020 before this Court. As per

Ext.P4 judgment, this Court disposed of the writ petition by

giving a direction to the competent respondent to take up

Ext.P3 representation and pass orders on the same, after

hearing the petitioner. It is submitted that Exhibit P5 hearing

notice was issued by the Chief Engineer (HRD & L)

contending that he is not the 'competent authority'. The

petitioner submitted Ext.P7 application for adjournment. It is

submitted that the 1st respondent never heard the petitioner.

Ext.P3 was only a representation submitted before the 1 st

respondent, Ext.P8 appeal has been submitted by the

petitioner before the 5th respondent. Pending consideration of

the above appeal, the 1st respondent issued Ext.P9 order

rejecting Ext.P3 request of the petitioner.

4. The learned counsel for the petitioner submits that the

petitioner was not heard before Ext.P9 order was passed and W.P.(C).No.29176/2020

the contentions raised by the petitioner were not considered.

The learned counsel for the respondents submits that a

reading of Ext.P9 itself would show that the petitioner had

been put on notice and heard before the order was passed. It

is submitted that the contention that the hearing was not

conducted by the 1st respondent is incorrect. It is submitted

that since the issue was only with regard to the shifting of post

within the domicile district itself, no difficulty of any nature

has been caused to the petitioner.

5. I have considered the contentions advanced on either side at

considerable length. It is seen that by Ext.P1, the post held by

the petitioner had been shifted from the Ernakulam sub

division office Section 1 to Vadakkekkara in the Nedumbassery

sub division. Ext.P1 would show that it was as part of the

financial control measures owing to the outbreak of Covid-19

pandemic and the consequent lock-down that the

rearrangement of the existing staff pattern had been carried

out. It is seen that several posts had been shifted by Ext.P1.

This aspect of the matter was considered in Ext.P4 judgment W.P.(C).No.29176/2020

also. The representation submitted by the petitioner was

directed to be considered by the competent authority in the

respondent and to pass orders thereon. It appears that the

petitioner had submitted objections to the hearing of the

matter by the Chief Engineer, HRD and General and submitted

representation seeking consideration of the issue by the

Managing Director. Ext.P9 is a proceedings issued by the

Managing Director. Ext.P9 specifically states that notice was

given for hearing through video conferencing 30.10.2020 and

due to the non availability of the petitioner, he was heard over

phone. The finding in Ext.P9 is to the effect that Ext.P1 is not

a transfer at all and is only a reorganization of the staff

strength as a part of the financial stringency measures. It is

noticed that the petitioner is a resident of Chengamanad in

Ernakulam district. His post has been shifted to Vadakkekara

in the Nedumbassery sub-division. The petitioner, who was an

employee of the Water Authority, cannot raise a claim that he

is entitled to work at one particular station of his choice.

Transfer as well as shifting of posts are measures adopted by

the employer in exigencies of service. The contentions raised W.P.(C).No.29176/2020

by the petitioner that he was liable to be continued at the

present station itself in spite of the administrative exigencies,

therefore, cannot be accepted.

6. In the facts and circumstances of the case, I am of the opinion

that the grounds raised by the petitioner against Ext.P9 are

not sustainable.

The writ petition fails and the same is accordingly dismissed.

Sd/-

Anu Sivaraman, Judge

sj APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER NO. 12655/E3/2018/KWA DATED 05.10.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION NO. EW-

2182/04 DATED 05.10.2020 ENCLOSING VACANCY REPROT OF STAFF AS ON 01/10/2020IN W.W. SUB DIVISION, KWA, KOCHI 16, SUBMITTED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE EXECUTIVE ENGINEER.

EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 06/10/2020 SUBMITTED BY THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.

21640/2020 DATED 19.10.2020.

EXHIBIT P5 TRUE COPY OF THE NOTICE OF HEARING OF EXHIBIT P3 PROPOSED TO BE HELD ON 30/10/2020. WA ISSUED BY THE CHIEF ENGINEER (HRD & L) TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY MANGING DIRECTOR THE KERALA WATER AUTHORITY DATED 21/12/2020.

EXHIBIT P7 A TRUE COPY OF THE APPLICATION FOR ADJOURNMENT OF HEARING FORWARDED TO THE CHIEF ENGINEER (HRD & L), DATED 30.10.2010 BY EMAIL.

EXHIBIT P8 A TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER DATED 27.10.2020 BEFORE THE 5TH RESPONDENT.

EXHIBIT P9 A TRUE COPY OF THE ORDER NO.

13390/E3/2020/KW DATED 21/12/2020 ISSUED BY MANAGING DIRECTOR THE KERALA WATER AUTHORITY TO THE PETITIONER.

EXHIBIT P10 A TRUE COPY OF THE RELIEVING ORDER NO. EW1-